AGREEMENT AND PLAN OF
MERGER
This
Agreement and Plan of Merger (the " Agreement ") is made
this _____ day of _____________ 2006, by and among Bellacasa
Productions, Inc., a Nevada corporation (" BCP "), WIFIMED
ACQUISITION, INC., a Delaware corporation and wholly owned
subsidiary of BCP (" NEWCO ") and WiFiMed, Inc., a Delaware
corporation (" WiFiMed ").
RECITALS
A.
WiFiMed is authorized to issue 30,000,000 shares of its common
stock, par value $.01 per share (" WiFiMed Common Stock "),
of which 7,387,796 shares are issued and outstanding. WiFiMed
is also authorized to issue 10,000,000 shares of preferred stock,
par value $.01 per share of which 3,000,000 shares have been
designated Series A Preferred Stock ("WiFiMed Series A Preferred
Stock") and 1,785,145 shares as Series B Preferred Stock ("WiFiMed
Series B Preferred Stock"). There are currently issued and
outstanding, 2,924,472 shares of WiFiMed Series A Preferred Stock
and 950,824 shares of WiFiMed Series B Preferred Stock.
WiFiMed also has outstanding options to purchase 1,343,750 shares
of common stock ("WiFiMed Options"), outstanding warrants to
purchase 72,800 shares of WiFiMed Common Stock and outstanding
warrants to purchase 428,928 shares of WiFiMed Series B Preferred
Stock ("WiFiMed Warrants"). WiFiMed has reserved 3,000,000
shares of its common stock, pursuant to the terms of its 2004 Stock
Option Plan.
WiFiMed
also intends to convert the WiFiMed Warrants to WiFiMed Options so
that no WiFiMed Warrants will remain outstanding.
WiFiMed
intends to effect a conversion of its Series A and Series B
Preferred Stock at a rate of 1:1 so that no shares of preferred
stock remain outstanding. The outstanding shares of WiFiMed Common
Stock, together with the shares of common stock issuable upon
exercise of the WiFiMed Warrants and WiFiMed Options are referred
to as the (" Pre-Merger WiFiMed Shares ").
WiFiMed
is conducting a private placement to sell up to 4,000,000 shares of
its common stock (" WiFiMed Offering Shares ") and 520,000
warrants (" WiFiMed Offering Warrants "), in units
consisting of 100 shares of common stock and warrants to purchase
13 shares of common stock at a purchase price of $100.00 per unit
(the WiFiMed Offering Shares and WiFiMed Offering Warrants,
together referred to as the WiFiMed Private Placement").
B.
BCP is authorized to issue 50,000,000 shares of common stock, par
value $.0001 per share (the " BCP Common Stock" or " BCP
Common Shares "). There are approximately 39,479,648
shares of common stock issued and outstanding. BCP is
authorized to issue 25,000,000 shares of preferred stock, none of
which have been issued. There are outstanding options and
warrants to purchase an aggregate of 865,000 shares of BCP Common
Stock.
C.
NEWCO is a wholly owned subsidiary of BCP and is authorized to
issue 1,000 shares of common stock, par value $.001 (referred to as
the " NEWCO Shares "), all of which are issued and
outstanding and owned by BCP.
D.
The respective Boards of Directors of BCP, NEWCO and WiFiMed (the
"Constituent Companies") deem it advisable and in the best
interests of each of the Constituent Companies, and their
respective stockholders, to effect a merger transaction in which
NEWCO will merge with and into WiFiMed, with WiFiMed remaining as
the surviving corporation and a wholly-owned subsidiary of BCP (the
"Merger"). In exchange for shares of WiFiMed Common Stock,
holders of Pre-Merger WiFiMed Stock will be entitled to receive
such number of shares of BCP Common Stock representing
approximately 86% of the outstanding common shares of BCP on a
fully diluted basis after giving effect to the Merger. Upon
completion of the Merger, BCP will cease all of its current
remaining operations and will adopt and continue implementing the
Business Executive Summary Plan of WiFiMed.
E.
The Merger, for Federal income tax purposes, shall be intended to
be a tax-free reorganization as described in the Internal Revenue
Code of 1986, as amended (the "Code").
NOW,
THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Constituent Companies hereby
make, adopt and approve this Agreement and prescribe the terms and
conditions of the Merger of NEWCO with and into WiFiMed and the
mode of carrying the Merger into effect as follows:
ARTICLE I.
THE MERGER
Section 1.01 The
Merger
Subject
to the terms and conditions of this Agreement, and in accordance
with the Delaware General Corporation Law ("DGCL"), NEWCO will be
merged with and into WiFiMed. WiFiMed shall be the surviving
company (hereinafter referred to as WiFiMed or the "Surviving
Company"). The separate existence and corporate organization
of NEWCO, except insofar as it may be continued by statute, shall
cease and WiFiMed shall become a wholly owned subsidiary of
BCP.
Section 1.02 Closing
Date
Subject
to the provisions of Articles VI, VII, VIII, IX and XI, the closing
of the Merger (the "Closing") shall take place no later than the
second business day after the date on which each of the conditions
set forth in Articles VI, VII and VIII (other than those conditions
that by their nature are to be satisfied at the Closing but subject
to such conditions) have been satisfied or waived, in writing, by
the party or parties entitled to the benefit of such conditions; or
at such other place, at such other time, or on such other date as
BCP, NEWCO and WiFiMed may, in writing, mutually agree. The
date on which the Closing actually occurs is herein referred to as
the "Closing Date."
Section 1.03 Effective
Date
Subject
to the terms and conditions of this Agreement, the Merger shall
become effective upon the filing of a Certificate of Merger with
the Delaware Secretary of State (the "Effective Date").
Section 1.04 Articles of
Incorporation and Bylaws of Surviving Corporation
The
Articles of Incorporation of WiFiMed, as in effect immediately
prior to the Effective Date, shall constitute and shall continue in
full force and effect as the Articles of Incorporation of the
Surviving Company unless and until amended in accordance with the
DGCL. The Bylaws of WiFiMed, as in effect immediately prior
to the Effective Date, shall constitute and shall continue to be
the Bylaws of the Surviving Company unless and until altered,
amended or repealed in the manner provided by the DGCL, the
Articles of Incorporation or said Bylaws.
Section 1.05 Directors
and Officers of Surviving Corporation
The
executive officers and directors of the Surviving Corporation shall
be as set forth on Schedule 1.05 and will hold office from
and after the Effective Date until their respective successors are
duly elected or appointed and qualified in the manner provided in
the Articles of Incorporation and Bylaws of the Surviving
Corporation or as otherwise provided by law or until their earlier
resignation or removal.
Section 1.06 Rights and
Liabilities of Surviving Corporation in Merger
On
and after the Effective Date, WiFiMed, as the surviving corporation
of the Merger, shall succeed to and possess, without further act or
deed, all of the rights, and all of the property, real, personal,
and mixed, of NEWCO; and all debts, liabilities and duties of NEWCO
shall thenceforth attach to WiFiMed and may be enforced against it
to the same extent as if such debts, liabilities and duties had
been incurred or contracted by it.
Section 1.07 Further
Assurances
If,
at any time after the Effective Date, the Surviving Corporation
shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or
otherwise in the Surviving Corporation its right, title or interest
in, to or under any of the rights, properties or assets of either
of the Constituent Corporations acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the
Merger or otherwise to carry out this Agreement, the officers and
directors of the Surviving Corporation shall be authorized to
execute and deliver, in the name and on behalf of each of the
Constituent Corporations or otherwise, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name
and on behalf of each of the Constituent Corporations or otherwise,
all such other actions and things as may be necessary or desirable
to vest, perfect or confirm any and all right, title and interest
in, to and under such rights, properties or assets in the Surviving
Corporation or otherwise to carry out this Agreement.
ARTICLE II.
CONVERSION OF SECURITIES
Section 2.01 Treatment of
WiFiMed Options
Every
WiFiMed Option issued and outstanding immediately prior to the
Effective Date of the Merger shall be converted into the right to
receive an option of BCP based upon the exchange ratio of the
WiFiMed Common Stock and at a purchase price to be adjusted to
reflect the terms of the exchange.
Section 2.02 Treatment of
WiFiMed Warrants
Prior
to the Effective Date of the Merger, each outstanding WiFiMed
Warrant to purchase Series B Preferred Stock shall be exchanged on
a 1:1 basis for WiFiMed Options.
Section 2.03 Treatment of
WiFiMed Series A and Series B Preferred Stock
Each
outstanding share of WiFiMed Series A and Series B Preferred Stock
shall be converted into WiFiMed Common Stock prior to the Effective
Date of the Merger at the conversion rate of 1:1 so that no shares
of WiFiMed Preferred Stock remain outstanding.
Section 2.04 BCP Reverse
Split
At
or prior to the effective date BCP shall implement a 10-to-1
reverse split of its common stock, which shall result in an
aggregate of approximately 3,900,000 shares of BCP Common Stock
outstanding on a fully diluted basis immediately prior to the
Effective Date.
Section 2.05 Treatment of
the Pre-Merger WiFiMed Shares
On
the Effective Date, the Pre-Merger WiFiMed Shares shall be
converted into and exchangeable for that number of shares of BCP
Common Stock and BCP Options, such that the BCP Common Stock and
BCP Options issued in exchange of the Pre-Merger WiFiMed Shares
constitutes 86% of shares of BCP Common Stock on a fully diluted
basis on the Effective Date. Each share of BCP Common Stock
shall be fully paid and non-assessable and contain a legend
restricting the transfer thereof in accordance with applicable
securities laws. All Pre-Merger WiFiMed Shares shall then be
canceled and retired, and each certificate representing Pre-Merger
WiFiMed Shares shall thereafter (i) represent only the right to
receive BCP Common Stock or BCP Options issuable in exchange for
such Pre-Merger WiFiMed Shares or WiFiMed Options upon the
surrender of such certificates; and (ii) entitle the holder thereof
to vote with respect to, and receive dividends, if any, on such
number of shares of BCP Common Stock which such holder is entitled
to receive in exchange for such certificates, provided that
dividends, if any, shall be paid to such holder, without interest,
only upon surrender of certificates.
Section 2.06 Treatment of
NEWCO Shares
Each
issued and outstanding share of common stock of NEWCO held by BCP
immediately prior to the Effective Date will be converted into and
become one validly issued, fully paid and non-assessable share of
common stock of WiFiMed.
Section 2.07
Ownership/Voting Rights of Pre-Merger WiFiMed Shares
On
and after the Effective Date and until surrendered for exchange,
each outstanding certificate that immediately prior to the
Effective Date represented Pre-Merger WiFiMed Shares (except
Dissenting Shares) shall be deemed for all purposes, to evidence
ownership of and represent the number of whole BCP Common Stock
into which such Pre-Merger WiFiMed Shares are convertible pursuant
to Section 2.05 above. The record holder of each such
outstanding certificate representing Pre-Merger WiFiMed Shares
shall, after the Effective Date, be entitled to vote the BCP Common
Stock into which such Pre-Merger WiFiMed Shares shall have been
converted or are convertible on any matters on which the holders of
record of the BCP Common Stock, as of any date subsequent to the
Effective Date, shall be entitled to vote. In any matters
related to such certificates of Pre-Merger WiFiMed Shares, BCP may
conclusively rely upon the record of stockholders maintained by BCP
containing the names and addresses of the holders of record of
Pre-Merger WiFiMed Shares on the Effective Date.
Section 2.08 Dissenting
Shares
Pre-Merger
WiFiMed Shares held by stockholders of WiFiMed who have properly
exercised and preserved appraisal rights with respect to those
shares (" Dissenting Shares ") in accordance with Section
262 of the Delaware General Corporation Law (" DGCL ") shall
not be converted into or represent a right to receive BCP Common
Shares pursuant to Section 2.05 above, but the holders thereof
shall be entitled only to such rights as are granted by Section 262
of the DGCL. Each holder of Dissenting Shares who becomes
entitled to payment for such shares pursuant to Section 262 of the
DGCL shall receive payment therefore from WiFiMed, as the surviving
corporation, in accordance with such laws; provided ,
however , that if any such holder of Dissenting Shares shall
have effectively withdrawn such holder's demand for appraisal of
such shares or lost such holder's right to appraisal and payment of
such shares under Section 262 of the DGCL, such holder or holders
(as the case may be) shall forfeit the right to appraisal of such
shares and each such share shall thereupon be deemed to have been
canceled, extinguished and converted, as of the Effective Date,
into and represent the right to receive payment from BCP of BCP
Common Shares as provided in Section 2.05 above.
Section 2.09 Exchange
Procedures
(a)
BCP shall authorize its transfer agent, or other such transfer
agent as agreed to by the Parties, to act as exchange agent
hereunder (the "Exchange Agent") for the purposes of exchanging
certificates representing Pre-Merger WiFiMed Shares or WiFiMed
Options for shares and options of BCP Common Stock.
(b)
Promptly after the Effective Date, the Exchange Agent shall mail or
cause to be mailed to each record holder of Pre-Merger WiFiMed
Shares or WiFiMed Options, as of the Effective Date, a letter of
transmittal and instructions for use in effecting the surrender of
the certificates representing said Pre-Merger WiFiMed Shares or
WiFiMed Options (the "Certificates") for exchange therefor.
(c)
Upon surrender to the Exchange Agent of a Certificate, together
with such letter of transmittal duly executed, the holder of such
Certificate shall be entitled to receive in exchange therefor that
number of BCP Common Stock which such holder has the right to
receive under Section 2.05 and such Certificate shall forthwith be
canceled. If any such shares are to be issued to a person
other than the person in whose name the Certificate surrendered in
exchange therefor is registered, it shall be a condition of
exchange that the Certificate so surrendered shall be properly
endorsed or otherwise in proper form for transfer and that the
person requesting such exchange shall pay any transfer or other
taxes required by reason of the exchange to a person other than the
registered holder of the Certificate surrendered or such person
shall establish to the satisfaction of the Surviving Corporation
that such tax has been paid or is not applicable.
(d)
Any portion of the BCP Common Stock made available to the Exchange
Agent pursuant to this Section 2.09 that remains unclaimed by the
holders of Pre-Merger WiFiMed Shares or WiFiMed Options 12 months
after the date on which Certificates representing such Pre-Merger
WiFiMed Shares or WiFiMed Options were deposited with the Exchange
Agent shall be returned to BCP, upon demand, and any such holder
who has not exchanged his, her or its Pre-Merger WiFiMed Shares or
WiFiMed Options in accordance with this Section 2.09 prior to that
time shall thereafter look only to BCP for his, her or its claim
for BCP Common Stock, any cash in lieu of fractional shares and
certain dividends or other distributions. Neither BCP nor
NEWCO shall be liable to any holder of Pre-Merger WiFiMed
Shares or WiFiMed Options with respect to any BCP Common Stock
delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
(e)
If any Certificate representing Pre-Merger WiFiMed Shares or
WiFiMed Options shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by
BCP, the posting by such person of a bond in such reasonable amount
as BCP may direct as indemnity against any claim that may be made
against it with respect to such Certificate, the Exchange Agent
shall issue in exchange for such lost, stolen or destroyed
Certificate the consideration payable under Section 2.05 taking
account for any stock dividend, stock split or other such action
relating to the BCP Common Shares.
ARTICLE III.
REPRESENTATIONS AND Warranties of BCP and NEWCO
BCP
and NEWCO jointly and severally represent, warrant and covenant as
follows, except to the extent set forth on the corresponding
sections of the Schedule of exceptions attached hereto and made a
part hereof:
Section 3.01
Organization
BCP
is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and NEWCO is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. BCP owns directly
all of the outstanding capital stock of NEWCO. Each of BCP
and NEWCO has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as
now being conducted. Each of BCP and NEWCO is duly qualified
or licensed and in good standing to do business in each
jurisdiction in which the property owned, leased or operated by it
or the nature of the business conducted by it makes such
qualifications or licenses necessary, except in such jurisdictions
where the failure to be so duly qualified or licensed and in good
standing would not individually or in the aggregate have a material
adverse effect on the business, operations, assets, prospects,
financial condition or results of operations of BCP and would not
delay or prevent the consummation of the transactions contemplated
hereby (a "BCP Material Adverse Effect"). BCP previously has
delivered or provided access to WiFiMed accurate and complete
copies of its Articles of Incorporation and Bylaws, and NEWCO's
Articles of Incorporation and Bylaws, each as currently in
effect. Neither of BCP nor NEWCO is in violation of any terms
of its Articles of Incorporation or Bylaws.
Section 3.02
Subsidiaries
Except
as set forth on Schedule 3.02 , BCP has, and on the
Effective Date will have, no subsidiaries, except for NEWCO, nor
does it own any direct or indirect interest in any other business
entity. Prior to Closing, BCP shall either wind down or sell
the subsidiary set forth on Schedule 3.02. In the
alternative, BCP may spin off the subsidiary set forth on Schedule
3.02 to its pre-merger shareholders provided it shall bear all
expenses attendant to the spin off.
Section 3.03
Capitalization
(a)
BCP is authorized to issue 50,000,000 shares of capital stock of
which there are 39,479,648 common shares issued and outstanding;
and 25,000,000 shares of preferred stock, par value $.0001 per
share, of which none of which are issued or outstanding. On
the Effective Date, there will be issued and outstanding no more
than 3,950,000 shares of BCP Common Stock, all of which will be
validly issued, fully paid and nonassessable. Except as set
forth on Schedule 3.03(a) and as contemplated by this
Agreement, on the Effective Date there will be no issued or
outstanding securities and no issued or outstanding options,
warrants or other rights, or commitments or agreements of any kind,
contingent or otherwise, to purchase or otherwise acquire BCP
Shares or any issued or outstanding securities of any nature
convertible into BCP Shares. There is no proxy or any other
agreement, arrangement or understanding of any kind authorized,
effective or outstanding, which restricts, limits or otherwise
affects the right to vote any BCP Shares.
(b)
The authorized capital stock of NEWCO consists of 1,000 shares of
common stock, $.0001 par value, of which one hundred (100) are
issued and outstanding and are validly issued, fully paid and
nonassessable. All such shares are issued to BCP. As of
the date hereof, there are no outstanding NEWCO stock options or
warrants or any other rights entitling any person to purchase
capital stock of NEWCO.
Section 3.04
Authority
Each
of BCP and NEWCO has full corporate power and authority to execute
and deliver this Agreement and, subject to the requisite approval
of the stockholders of BCP, to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized and approved by the
Boards of Directors of BCP and NEWCO and by BCP as the sole
stockholder of NEWCO, and no other corporate proceedings on the
part of BCP or NEWCO are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. BCP's
Board of Directors has determined that the transactions
contemplated by this Agreement, including the Merger, are in the
best interests of BCP and its stockholders and, except as required
in exercise of their fiduciary duty, have determined to recommend
to such stockholders that they vote in favor of this Agreement and
the consummation of the transactions contemplated hereby, including
the Merger. This Agreement has been duly and validly executed
and delivered by each of BCP and NEWCO and, assuming this Agreement
constitutes a legal, valid and binding agreement of WiFiMed and the
WiFiMed stockholders, constitutes a legal, valid and binding
agreement of BCP and NEWCO, as the case may be, enforceable against
each of them in accordance with its terms, except as the
enforceability may be affected by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and the
possible unavailability of certain equitable remedies, including
the remedy of specific performance.
Section 3.05 No
Violations: Consents and Approvals
(a)
BCP Stockholders . The agreement of the holders of a
majority of the outstanding BCP voting stock is required to (i) to
change the state of incorporation of BCP from Nevada to Delaware,
(ii) amend BCP's articles of incorporation to effect a reverse
split and increase its authorized shares, (iii) to approve the
Merger, (iv) approve a name change, (v) if necessary, approve the
sale or disposition of any BCP Pre-Merger Assets and (vi) approve
the adoption of a Stock Option Plan. No other vote of the
stockholders of WiFiMed is required by Law, the Certificate of
Incorporation or Bylaws of WiFiMed or otherwise in order for
WiFiMed to consummate the Merger and the transactions contemplated
hereby.
(b)
Contracts and Material Agreements . Neither the
execution and delivery of this Agreement nor the consummation of
the transactions contemplated hereby nor compliance by BCP and
NEWCO with any of the provisions hereof conflicts with, violates or
results in any breach of (i) any contract, agreement, instrument or
understanding to which BCP or NEWCO is a party or by which BCP,
NEWCO or any of their respective assets or properties is bound; or
(ii) subject to the requisite approval of BCP's stockholders, any
law, judgment, decree, order, statute, rule or regulation of any
jurisdiction or governmental authority (a "Law") applicable to BCP
or NEWCO or any of their respective assets or properties, excluding
from the foregoing clauses conflicts, violations or breaches which,
either individually or in the aggregate, would not have an BCP
Material Adverse Effect or materially impair BCP's or NEWCO's
ability to consummate the transactions contemplated hereby or for
which BCP or NEWCO has received or, prior to the Merger, shall have
received appropriate consents or waivers.
(c)
Governmental Entities . No filing or registration
with, notification to, or authorization, consent or approval of,
any governmental entity is required by BCP or NEWCO in connection
with the execution and delivery of the Agreement or the
consummation by BCP or NEWCO of the transactions contemplated
hereby, except (i) in connection, or in compliance, with the
provisions of the Securities Act of 1933, as amended (the
"Securities Act"), and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); (ii) the filing of the Certificate of
Merger with the Secretary of State of Delaware; and (iii) such
consents, approvals, orders, authorizations, registrations,
declarations and filings, the failure of which to be obtained or
made would not, individually or in the aggregate, have an BCP
Material Adverse Effect, or materially impair the ability of BCP or
NEWCO to perform its obligations hereunder.
Section 3.06 Related
Party Transactions
Except
as set forth in the SEC Reports and on Schedule 3.06 , as
of Closing there are no loans, leases, commitments,
arrangements of any kind or nature outstanding between BCP and any
officer or director of BCP, or any Person related to or affiliated
with any officer or director of BCP.
Section 3.07 SEC Reports;
Financial Statements
BCP
has filed all reports required to be filed by it under the
Securities Act and the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, since January 1, 2003 (together "SEC
Reports"). As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations
of the SEC promulgated thereunder, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of BCP included in the SEC Reports ("BCP
Financial Statements") complied in all material respects with
applicable accounting requirements and the rules and regulations of
the SEC with respect thereto as in effect at the time of
filing. Such financial statements were prepared in accordance
with GAAP, except as may be otherwise specified in such financial
statements or the notes thereto, and fairly present in all material
respects the financial position of the BCP as of and for the dates
thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments.
Section 3.08 Title to
Assets
BCP,
has, and on the Effective Date will have, good and marketable title
to all of its furniture, fixtures, equipment, inventory and other
assets owned by BCP, and such assets are owned free and clear of
all security interests, pledges, liens, restrictions and
encumbrances of every kind and nature. BCP was, on the date
of its most recent BCP Financial Statements, the owner of its
inventory as set forth in such BCP Financial Statements and has
good and marketable title thereto.
Section 3.09 Accounts
Receivable
The
accounts receivable set forth in the BCP Financial Statements
represent amounts due for goods sold or services rendered by BCP in
the ordinary course of business and, except as reserved for in the
BCP Financial Statements, BCP believes are collectable in the
ordinary course of business, without any claims by the obligor for
set-off, deductions or counterclaims.
Section 3.10 Liabilities;
Claims
There
are no liabilities (including, but not limited to, tax liabilities)
or claims against BCP (whether such liabilities or claims are
contingent or absolute, direct or indirect, matured or unmatured)
not appearing on the BCP Financial Statements.
Section 3.11 Absence of
Certain Changes
Since
June 30, 2006, BCP has been operated only in the ordinary course,
consistent with past practice, and there has not been any adverse
change, or any event, fact or circumstance which might reasonably
be expected to result in an adverse change, in either event that
would have a BCP Material Adverse Effect. Without limiting
the generality of the foregoing, except as set forth on Schedule
3.11 or in the BCP SEC Documents, since June 30, 2006, there
has not been with respect to BCP or NEWCO any:
(a)
sale or disposition of any material asset other than inventory in
the ordinary course;
(b)
payment of any dividend, distribution or other payment to any
stockholder of BCP or to any relative of any such stockholder other
than payments of salary and expense reimbursements made in the
ordinary course of business, consistent with past practice, for
employment services actually rendered or expenses actually
incurred;
(c)
incurrence or commitment to incur any liability individually or in
the aggregate material to BCP, except such liabilities under BCP's
existing credit facilities and liabilities incurred in connection
with the Merger;
(d)
waiver, release, cancellation or compromise of any indebtedness
owed to BCP or claims or rights against others, exceeding $25,000
in the aggregate;
(e)
any change in any accounting method, principle or practice except
as required or permitted by generally accepted accounting
principles; or
(f)
unusual or novel method of transacting business engaged in by BCP
or any change in BCP's accounting procedures or practices or its
financial or equity structure.
Section 3.12 Finder's
Fees
Neither
BCP nor NEWCO nor any of BCP's affiliates or their respective
officers, directors or agents has employed any broker, finder or
financial advisor or incurred any liability for any broker's fees,
commissions, or financial advisory or finder's fees in connection
with any of the transactions contemplated by this Agreement.
Section 3.13 Compliance
With Laws
Neither
BCP nor NEWCO is conducting or has conducted its business in
violation of any Law, including without limitation, any law
pertaining to environmental protection, occupational health or
safety, or employment practices, except any law the violation of
which would not have an BCP Material Adverse Effect.
Section 3.14 Legal
Proceedings
Except
as set forth in the BCP SEC Documents, there is no claim,
litigation, investigation or proceeding by any person or
governmental authority pending or, to BCP's knowledge threatened,
against BCP or NEWCO which would have a BCP Material Adverse
Effect. There are no pending or, to BCP's knowledge,
threatened controversies or disputes with, or grievances or claims
by, any employees or former employees of BCP or NEWCO or any of
their respective predecessors of any nature whatsoever, including,
without limitation, any controversies, disputes, grievances or
claims with respect to their employment, compensation, benefits or
working conditions, except for such litigation which would not have
a BCP Material Adverse Effect.
Section 3.15 Employee
Benefits
BCP
has not authorized any employee welfare plans or any equity
compensation plans, nor has its Board of Directors authorized the
reservation or issuance of any securities under any equity
compensation plan.
Section 3.16
Taxes
All
federal, state, county and local income, excise, property or other
tax returns required to be filed by BCP have been timely filed and
all required taxes, fees and assessments have been paid or an
adequate reserve therefor has been provided for in the BCP
Financial Statements. The federal income tax returns and
state and foreign income tax returns of BCP have not been audited
by the IRS or any other taxing authority within the past five
years. Neither the IRS nor any state, local or other taxing
authority has proposed any additional taxes, interest or penalties
with respect to BCP or any of its operations or businesses.
There are no pending, or to the knowledge of BCP threatened, tax
claims or assessments, and there are no pending, or to the
knowledge of BCP threatened, tax examinations by any taxing
authorities. BCP has not given any waivers of rights (which
are currently in effect) under applicable statutes of limitations
with respect to the federal income tax returns of BCP for any
year.
Section 3.17 Intellectual
Property
BCP
has no patents, patent applications, trademarks, trademark
registrations, trade names, copyrights, copyright registrations or
applications therefor. BCP has no knowledge of any
infringements by BCP of any third party's intellectual
property.
Section 3.18 Absence of
Certain Business Practice
Neither
BCP nor any directors, officers, agents or employees of BCP (in
their capacities as such) has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
relating to political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns or violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended,
or (iii) made any other unlawful payment.
Section 3.19 Issuances of
Securities
Except
as set forth in the SEC Reports, BCP has not issued or committed
itself to issue, and prior to the Effective Date will not issue or
commit itself to issue, any BCP Shares or any options, rights,
warrants or other securities convertible into BCP Shares, except as
contemplated by this Agreement.
Section 3.20 Adverse
Officer and Director Information
During
the past 5 year period neither BCP, nor, to its knowledge, any of
its executive officers, members of executive management or
directors, nor any Person intended upon consummation of the Merger
to be nominated by BCP to become an executive officer, member of
executive management or director of the Surviving Company or any
successor entity or subsidiary, has been the subject of:
(a)
a petition under the federal bankruptcy laws or any other
insolvency or moratorium law or has a receiver, fiscal agent or
similar officer been appointed by a court for the business or
property of BCP or such Person, or any partnership in which BCP or
any such Person was a general partner at or within two years before
the time of such filing, or any corporation or business association
of which BCP or any such Person was an executive officer at or
within two years before the time of such filing;
(b)
a conviction in a criminal proceeding or a named subject of a
pending criminal proceeding (excluding traffic violations which do
not relate to driving while intoxicated or driving under the
influence);
(c)
any order, judgment or decree, not subsequently reversed, suspended
or vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining BCP or any such Person from, or otherwise
limiting (i) acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool operator, floor
broker, leverage transaction merchant, any other Person regulated
by the United States Commodity Futures Trading Commission or the
SEC or an associated Person of any of the foregoing, or as an
investment adviser, underwriter, broker or dealer in securities, or
as an affiliated Person, director or employee of any investment
company, bank, savings and loan association or insurance company,
or engaging in or continuing any conduct or practice in connection
with such activity; (ii) engaging in any type of business practice;
or (iii) engaging in any activity in connection with the purchase
or sale of any security or commodity or in connection with any
violation of federal, state or other securities laws or commodities
laws;
(d)
any order, judgment or decree, not subsequently reversed, suspended
or vacated, of any federal, state or local authority barring,
suspending or otherwise limiting for more than 60 days the right of
BCP or any such Person to engage in any activity described in the
preceding sub-paragraph, or to be associated with persons engaged
in any such activity;
(e)
a finding by a court of competent jurisdiction in a civil action or
by the SEC to have violated any securities law, regulation or
decree and the judgment in such civil action or finding by the
Commission has not been subsequently reversed, suspended or
vacated; or
(f)
a finding by a court of competent jurisdiction in a civil action or
by the United States Commodity Futures Trading Commission to have
violated any federal commodities law, and the judgment in such
civil action or finding has not been subsequently reversed,
suspended or vacated.
Section 3.21 Full
Disclosure
To
the knowledge of BCP, none of the information supplied or to be
supplied by or about BCP to WiFiMed concerning the Merger contains
any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they are made, not misleading.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF WiFiMed
WiFiMed
represents, warrants and covenants as follows, except to the extent
set forth on the corresponding sections of the Schedule of
exceptions attached hereto and made a part hereof:
Section 4.01
Organization
(a)
WiFiMed is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being
conducted. WiFiMed is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business
conducted by it makes such qualifications or licenses necessary, as
indicated on Schedule 4.01 , except in such jurisdictions
where the failure to be so duly qualified or licensed and in good
standing would not individually or in the aggregate have a material
adverse effect on the business, operations, assets, prospects,
financial condition or results of operations of WiFiMed and would
not delay or prevent the consummation of the transactions
contemplated hereby (a "WiFiMed Material Adverse Effect").
(b)
WiFiMed previously has delivered or provided access to BCP accurate
and complete copies of WiFiMed's Certificate of In
